7 

y 



'KANSAS COOTESTED ELECTION. 



P 685 
.T244 
Copy 1 



SP-EE CH 



HON. MILES TAYLOR, OF LOUISIANA, 

IN THE HOUSE OF REPRESENTATIVES, MARCH 13, 1856, 

On the Resolution repcrted bij the Cammiitee of Eleclions in the Contested -Election 

if. ,-•'■ case from the Territory of Kansas. 

•»■•' '■• . ' ' - - . 



- Mr. TAYLOR said: 

Mr. Speaker: I regret that the rules of this 
House do not allow me sufficient time to notice 
all of the various topics that have "presented 
themselves in the course of this discussion. It 
"would have given me infinite pleasure to reply to 
the remarks of the honorable gentleman from 
Now York, [Mr, Wakeman,] who addressed the 
House yesterday, in. which he. took occasion to 
denounce the Administration in good set terms. 
Ho spoke of the acts of this Administration in a 
manner which seemed to fill him with pleasure, 
but which, it seemed to me, all good citizens 



were raised yesterday, and particularly to the 
question as to the character of the existing 
contest in relation to the right of the sitting Del- 
egate from Kansas, which was chiefly dwelt on by 
the honorable gentleman who has just taken his 
seat, [Mr. PuRviANCE.] That gentleman referred 
to this question, and spoke of it as a judicial one; 
and, for the purpose of supporting the position 
which his friends in this House have taken, has 
attemjitcd to draw conclusions as to the manner 
in which the power of this House is to be exer- 
cised in deciding the question involved in the 
existing contest by reference to the decisions of 



should regret. Time, however, .will not perntit courts deciding upon private rights. Now, Mr. 
me to pay attention to those remarks, or to vin- ' Speaker, before entering upon the line of argu- 
dicate our present national Administration from I, ment which I propose for myself, I wish to say 
the most unjustifiable, most undeserved, most, " a few words for the purpose of showing the en- 
unprovoked, and most wanton and unfounded | tire absurdity of the position which he and his 
assertions made by that gentleman. But 1 will I friends have taken upon that particular point 



venture to say this, before leaving the subject 
altogether: The policy of this Administration, 
which has been condemned with such intenqierate 
heat-j has commended itself, and will continue to 
commend itself, to the approbation of all who 
prefer relations of peace and amity with the other 
nations of the world, wh'en those relations can be 
maintained without a sacrifice of national respect, 
■or of national honor, and of all those who are 
unwilling that the union of these States should 
be endangered by tlie unijridled license of those 
who have set up a law for themselves which is 



The position which they assume is, that there is 
a pow«^r vested by tlie Constitution in this House 
to inquire into the validity of the existing goverjl- 
ment of Kansas, with a view to the determina- 
tion of the right of the sitting Delegate to his seat 
on this floor, and to decide that question for itself, 
and independently of all the other coordinate 
departments of the Government. 

Mr. Speaker, what would be the result if that 
position were correct.' What would be the con- 
sequences of the exorcise of the power claimed, 
on the part of this House for itself, and without 



higher than the Constitution. .For my own-part | [ the concuwence of the other departments of the 
1 believe, without the slightest shadow of doubt, [ j Government? There are two Houses of Congress, 
'that the acts of this Administration will stand out j j If this House has the power to decide that ques- 
in bold relief upon the page of history, and that i tion for itself, the Ho^use might decide that the 
its conduct of the difficult questions intrusted to i i existing territorial government in Kansas was 
its management, whether shown by what it has H a valid government, and admit the person claim- 
done or by what it has failed to do, will be referred 1 1 ing to be the Delegate of the people of that Terri- 
to by the patriots of future times as examples of!} tory to his seat; and we should then have within 
a wise activity, or of a prudent moderation; when 'I the limits of this Hall a Delegate representing 
the unconstitutional schemes, the illegal acts, and !| the Territory of Kansas. But, at the other end 
the treasonable excesses of those with whom the jl of the Capitol, there is anotlier body which pos- 
gentleraan from New York [Mr. Wakemax] is'lscsses the same constitutional power and, upon 
now acting, will be regarded by the curious in-: the principle which the.se gentlemen assert, that 
quirer as extraordinary displays of that madness ,i body could also inquire into and determine for 
to which portions of all communities seem to be ij itself upon the validity of the proceedings of that 
subject whenever poUlical action is stimulated by ' | portion of the people on the soil of Kajisas who 



the leaven of what misguided fanatics and cnthu 
siasts do not hesitate to call " a religious excite- 
ment," or " a moral agitation." 

It would also, Mr. Speaker, give me pleasure 
to pay attention to the various questions which 



have framed a Constitution, and declared that they 
now constitute an independent political commu- 
nity, which is clothed with all the rights of a 
sovereign State. Well, sir, if the individuals 
elected to the Legislature created by that pretended 



/-6S£ 



constitution sought, in the exercise of the power 
whieh that constitution purports to put in them, 
to elect Senators to represent them in the Con- 
gress of the United States, the persons elected 
might present themselves at the other end of the 
Capitol, and that House, exercising the same con- 
stitutional power, might decide that the pretended 
State government was a valid one, and that those 
persons v/ere rightfully elected Senators from the 
State of Kansas; and thus -wouy a strange spec- 
tacle be presented. Powers expressly conferred 
upon each branch of the national Legislature by 
the Constitution would have been rightfully exer- 
cised by each in such a manner that it would be 
constitutionally decided that two distinct, separ- 
ate, and conflicting governments rightfully ex- 
isted at the same time over the same Territory ! 
In this department of Government Kansas would 
be recognized as a Territory, and in the other it 
would be regarded as a sovereign State. Now, 
I submit it to gentlemen — I submit it to this 
House — I submit it to all men of intelligence and 
common sense— can any principle, which, when 
carried out, may lead to such consequences, be 
correct.' 

It seems to me, Mr. Speaker, that this view of 
the case must be decisive to the mind of every 
one who is free from bias — who looks upon ques- 
tions presented to this House with a single eye 
to their proper decision; for it is self-evident that 
the power claimed for the House in its separate 
capacity not only involves the possible occur- 
rence of absurdities in the practical exerci,se of 
it, independently of the other branch of the na- 
tional Legislature and of the national Executive, 
but that there might be contingencies in which, 
if insisted on by the House, it might not only 
impede the regular action of the Government, but, 
perhaps, ariv.st it altogether. 

But, sir, it is easy to show the impropriety of 
granting the power asked for by the Committee 
of Elections, on other grounds; and, with the 
view of doing so, will recur to the question really 
before the House. I shall not attempt a discus- 
sion of general topics; I shall not attempt to 
look into the tlioiisands and hundreds of thou- 
sands of cases contained in the volumes of judi- 
cial reports which have been or may be cited on 
th(.' other .side in support of their position. These 
cases may, and probably do, illustrate various 
principles which are involved incases of contests 
■with respect to private rights in courts of justice, 
but can have no application whatever to the ques- 
tion now before us. That question i» a political 
question , and it is this : Shall the resolution offered 
by the Committee of Elections, that they have 
power to send for persons.and papers with a view 
to the investigation of the Kansas election case — 
shall that resolution be adopted, and the power 
asked for be granted ? The question involved in 
the aioption of that resolution is: Shall the Com- 
Tnitcee of Elections take .testimony in relation to 
■what transpired in the Territory of Kansas ]irior 
to the passage of the election laws of that I'erri- 
tor/, under which the election of a Delegate to 
T.'oresent that Territory here was holden on the 
30t 1 March, 18"j5, fof- the purpose of resolving 
the questions which properly arise in relation to 
the right of the sitting Delegate to a seat upon 
tnus floor. ' - " 

Rr reference to the report of the committee 
which acc-mpanies the r{?sdhiti(>n, it will be dis- 
covered that the right is claimed on the ground 
that the election under which the sitting member 
claims his seat was and is null and void, on two 



distinct and different grounds: One is, that the law 
under which he claims to have been elected is in- 
valid; the other is, that there were illegal votes 
gi^en in the election holden under the authority 
of that law. 

In respect to the first proposition, it i.? contended 
by the contestant that tiie legislative act is invalid; 
first, because the persons assuming to act as mem- 
bers of the Council and House of Representatives, 
con.stituting the Legislative AssemWy created by 
the twenty -second section of the Kan.sas act, did 
not in flict constitute such Legislative Assenrbiy, 
because they did not assemble and organize and 
proceed to the transaction of business at the place 
which was declared in the thirty-first section of 
the territorial act to be the temporary seat "of 
government; and, second, because the persons 
assuming to compose the Legislative Assembly 
which enacted the law under which the election 
was holden were not elected by the inhabitants 
of the Territory, in whom the right to elect was 
vested by the territorial act, but were actually 
returned by persons not resident within the Ter- 
ritory, who, in violation of law and of the rights 
of the inhabitants of the Territory, entered it by 
force in military array, with banners displayed, 
drums boating, and fifes playing. 

The first reason assigned for the invalidity of 
the legislative act uiider which the election of 
the sitting Delegate was holden, is based on the 
notion that the persons elected as Councilmen and 
Representatives could not act as a Legislative As- 
sembly, nor be in any way vested with the legis- 
lative powerintended to be conferred on them by 
the Kansas act, unless they first assembled and 
organized at ihe place designated in the act as the 
temporary seat of government, and continued to 
assemble there while engaged in the work of 
legislation. 

Mr. Speaker, upon a recurrence to the Kansas 
act, it will be at once seen that this pretension is 
v/ithout any foundation — that it has not only no 
foundation in the principles of law, but that it is 
entirely unsustaincd by anything contained in 
the provisions of this particular act. I know that 
the distinguished gentleman from Indiana, [Mr. 
Dunn,] the other day, alluded to this particular 
objection, and seemed to attach great weight to 
it. I cannot but think that his conclusion was 
arrived at without his making an examination of 
the act itself. His position that the illegality of the 
proceedings of that Legislature may be inferred 
because it did not assemble and it did not act at 
Fort Leavenworth, the place designated in the act 
as the temporary seat of government, is founded 
on an error of fact. * 

If you refer to tjie act creating the territorial 
government of Kangas, what will be discovered.' 
There are three provisions — and three only — in 
that act which can in any way have ar,y bearing 
on the subject — I mean, which make mention, 
directly or indirectly, of a seat for the government 
of the rcrritory, or of the place where the legis- 
lative power granted by the act was to be exer- 
cised. 

In the thirty-first section it is declaj-ed that Fort 
Leavenworth shall be the temporary seat of gov- 
ernment. In the thirty-third section it is declared 
that the usual appropriations shall bo jnade for 
the erection of public buildings at the seatof gov- 
prnm'ent. These provisions speak genei-ally of a 
" seat of government;" they do not say one word 
about the seat of the legislative pQwcr. Gentle- 
men on the other side, however, insist upon it 
(hat all legislative power must be ex£rcised at the 



3 



seat of government of every distinct political com- 
munity. It would not be difficult to show, by 
both reason and PiUthority, that this is untrue as 
a general proposition; but that is entir.ely unneces- 
sary in the present instance, because the very act 
creating a Legislature for the Territory of Kansas 
provides for its being convoked at a place different 
from that ivliich had been declared to be the temporary 
seat of govermnent for the- 'territory. In the twenty- 
second section of the Kansas act, after providini^ 

^ for the election of a Legislature and for ascertain- 

^ ing the result of such election, it is declared that 

" the persons thus elected to the Legislative As- 
sembly shall meet at such place find on such day 
as the Governor shall appoint." 

', • Now, sir, these three provisions exist in the 

same act— eacli is operative^awd what is the neces- 
sary result? It lis true that the temporary gov- 
ernment was established by the territorial act at 

I Fort Leaven wortli; and it is also equally true 

that the Governor was vested with authority to 
tissemble the first Legislature to bo elected under 
the authority of the act at any place which he 
should " appoint." Power was specially siven 
to him to assemble thesn at any point within the 
whole extent of that Territory. And then, sir, 
when the Legislature was assembled at the spot 
which the Governor himself fixed upon, the act 
further declares that the legislative power vested 
in it " shall extend to all rightful subjects of legis- 
lation consistent with the Constitution of the 
United States and the provisions of this act." 
This shows at once that there is nothing in the 
act which made it necessary for the Legislature 
to assemble at any particular place; that it was 
competent for the Govetmor to select any spot; 
and it shows, too, that -inasmuch as the grant 
of legislative power mad.e in the act extended to 
"'all rightful subjects of legislation," the Legis- 
lature, when convoked by*ti)e Governor under the 
authority of the act, was vested with full power 
to establish a seat of government and to select its 
own place, of sitting. 

The other question is one of fact. It is said 
that the election, under the territorial act, was 

I invalid, because the Legislature itself was elected 

by the votes of intruders into the Territory, who 
overpowered its peaceful inhabitants and excluded 
tbeni from the polls, or outnumbered them by 
their votes. Now, what are the facts presented 
in this case? There is no evidence before tnis 
House; there is no evidence before the committee 
of any kind, unless what is contained in a memo- 
rial signed by A. H. Reeder is to be considered 
ivi evidence. It is undoubtedly the right of this 
House' to decide upon the claim of anj^ one who 
presents himself, asserting that he is entitled to a 
seat upon this floor, iij the capacity of Delegate 
ftir a Territory; but if he presents himself with 
tile ordinary evid^mce furnished by the Executive 
of that Territory, in the usual manner, as proof 
of his right to a seat, he is entitled to a seat, un- 
less an opposing right is shown. There is not, 
in the proper sense of the term, an election con- 
test before the House at this time. No individual 
who was a candidate at the election has presented 
hi.mself, contesting the right of J.W. Whitfield, 
the sitting Delegate. No person who was a legal 
voter at that election has presented himself, con- 
testing that riglit. The only show of opposition 
to the right of Whitfield to the scat he occupies, 
under a certificate of election made in due form 
of law by the Executive of- that Territory, is 
founded on the simple ijiemorial of A. H. Reeder. 
This memorial is not under oath. It cannot be 



regarded as evidence, in any light in which you 
may please to regard it. If its statements are 
false— as I believe them to be— he cannot be con- 
victed of perjury in a court of justice. But, sir, 
if it were otherwise, A. H. R"eeder, the memo- 
rialist, upon the plainest principles of law, is 
j inccfmpetcnt to give testimony in this ca«e. 

Gentleman have alluded to the di.'cisions of 

courts. If they will only refer to the principles 

! with respect to the competency of witnesses 

j which are universally sanctioned in our courts of 

i justice, they v.-ill at once sec that A. H. Reeder 

j| would not be lieard by any judicial tribunal in 

1 1 any case involving the same circumstances. A. 

Ij H. Reeder was appointed Governor of Kansas 

liin 1854. By the terj-itorial act he v/as vested 

i| with supreme legislative and executive powers, 

1 1 until the machinery contemplated to exist under 

■! the territorial g:ivernm3nt came into existence. 

1 1 He was authorized to cause a census or enumer- 

jj ation of the inhabitants and qualified voters of 

! the several counties and districts of the Territory. 

He was authorized to district tho.Territory, and 

to apportion the representation in the Council 

and House of Representatives, among the dis- 

ti-icts. He was authorized to appoint judges to 

hold the elections. He was authorized to lay 

j! down rules for their government in the receiving 

\\ of votes, and in making their returns. He exer- 

I j cised those powers. He had a census of popula- 
j , tion and voters taken. He districted the Territory. 

I I He fixed the times and places of holding the first 
{ I election. Persons appointed by him held the 
jl elections under his anilririi;'. Tin 'y were gov- 
I'erned in conduct' _ '!■ •.-■ I'mu !jy the rules 

; which he himselt'l. i ' *■■'.. Tiiey returned 
i the names of the j mi-.suhs voted for, and tjie num- 
II bcr of votes, given to them respectively at the 
|i election, to him. lie received these returns and 
ji declared a large majority of the members sitting 
ji in each branch of the Territorial Legislature to 
'j have been duly elected to their respective Houses, 
ij after receiving the returns. 

:| Now it is said, however, that that election of 
h those members was brought about by violence;, 
I that it was brought about by armed men who 
il entered the Territory in hostile array, with bail- 
ie ners flying and trumpets sounding, and took pos- 
I session of the polls, and filled the ballot-boxes 
j! with their votes, in defiance of the inhabitants. 
I j Where was Governor Reeder when this inva- 
Ijsion took place?— this overpowering force was 
|i exerted. He was i\u:\\ (In- chief magistrate of 

I that Territory, a:u! hr (■■ii>;inued to be so while- 
jl the Legislature, thus el'.cfcd, was in session; a:nd 
!i he continued to hold the same position until a 
ji few weeks only before the election, with respect 
!^ to which this contest has arisen. Governor 
Ij Reeder was iu possession of all the nvansfor 

; obtaining informaiion. Tlie otilcers wlio held the 
! first election were chosen hy him, nnd were under 
ji his control when they madr tlnir ntunis. He 
;| was then in possession v.f tlic i )itirr le-islativo 
''. and executive power of thii I'lirii.-iry. If what 
j he now asserts had really transpired, it C'luld not;. 
':■ have been unknov/n to him. If such occurrences 
Ij as he describes in his memorial did take place, it. 
j must necessarily have been in the presence of the 
j oflicers who held the election, and of all those 
': citizens who repaired to the places Nvh-^re the elec- 
j! tions were held fortlie purpose of voting-; and he 
|j must have had entire knowledgi.' of all the facts. 
;i If the alleged facts had had any existence, what, 

I I would have been the duty of Governor Reeder,' 
1! when the returns , of the election were made to 



him? Why, sir, he was bound by his oath of 
office to reject the returns, and to call upon the 
Executive of the United States to repress such 
disorders, if the po\vei'*which he wielded was 
not sufficient. But he did nothing- of the sort, 
and approved the rL-turns, called the Legislature 
together, and when it had assembled at the time 
an^d place appointed by him , he recognized it as the 
Legislative Assembly of the Territory. Where, 
then, I ask, did Governor Reedcrgctinfoi-mation 
as to the facts recited -by him in this memorial? 
It was not in the Territory, where they are said 
to have transpired, and where all those having 
any knowledge of the facts connected with the 
election were to be foiuid. It must have been in 
Pennsylvania; for we all know that Governor 
Recder lift the. Territory of Kansas, and was 
engaged daring the past summorin making stump 
speeches through the State; and, so far as we 
know, he has scarcely visited the Territory of 
Kansas since that -time. 

Now, Governor Reeder was perfectly silent 
when it was his d\ity to speak ; when he was bound 
Ijy his oath of office to interfere, if what ho now 
alleges were true. He failed to do so. But the 
moment he is removed from office, and while he 
is in the Slate of Pennsj^lvania, he suddenly be- 
comes illuminated — his mind is filled in the latter 
part of 1855 with information in regiird to an 
election holden under liis authority, and in his 
presence in the early part of the same year, some 
fifteen hundred or two thousand miles from the 
spot where he first got light, and makes these al- 
legations. The singular increase in Governor 
R,eeder's knowledge, which has apparently grown 
out of the diminution of his means for acquiring 
it, reminds me verj' much of an incident which 
is spoken of in literature. A distinguished dra- 
matic writer, a century or two ago, put into the 
inoutli of one of his heroes' this expression: 
"My wound, it is so great because it is so small." 

A wit who was present at the representation 
of the play in which the expression occurred, on 
hearing it, at once cried out: 

" It vi'ould iiave been greater had 't been none at all." 

I\i:)w, Governor Reeder's knowledge seems to 
be pieliy much dependent on the principle of 
these iu'-o ^^'Xpressions. While the Governor 
was in Kansas, with the control of the executive, 
power of thfit Territory'', and was in communi- 
cat;on with the (iHi-cr:^ who lield the elections 
and \, .ill till' ili;,>l^iL.ll.:^^ v.l... <, . >il at them, he 
hud no iai^uii .i:,i' <•/ ;i:iy ;':.;.j wliich,in his 
judgnieut, would auth'jri/.e liini in his official 
capacity to withhold the election certificates of 
the members of the General Assembly not^yet 
in existence. But when he willidrew from Kan- 
sas and returned to Pennsylvania, where he Was 
engaged during the summer in making stump 
speeches, fifteen hundred- or two thousand miles 
distant from the scene of those remarkable dis- 
plays, he becomes .suddenly so well informed 
in relation to them, that he thinks himself justi- 
fied in attemjitingjUpon their authority, to 'have 
a government overthrown which has existed 
iiearly two years, and which has before sent a 
Djlegate to tile C->!igress of the United Stales, 
v.- ho claimed and was admitted to a seat here upon 
a certificate that he was duly elected, signed by 
Governor Reeder himself. As Governor Reeder 
had no knowledge of the outrages which he now 
pretends were perpetrated on the inhabitants of 
Kansas at the first election holden in the Terri- 
tory, while he was in that Territory as its Gov- 



ernor, and as he has since, during his absence,, 
apparently laid iji a good stock of it, is it not 
likely, I would ask, that his knowledge of these 
outrages would have been much greater if he had 
never been in Kansas at all, or had gone further 
off? 

But, whatever may be the opinion upon this 
-subject, one thing is perfectly certain: Governor 
Reeder could not be hearS in a cotirt of justice as 
a witness to impeach the validity of a Legislature, 
the members of which were convoked on his 
summons, and held their seats only underthe au- 
thority of certificates that they were duly elected, 
granted byhimseH". It is a principle recognized in 
all courts of justice, that one who has put his name 
upon a negotiable instrument and giveh it cur- 
1 rericy, cannot be permitted, by his own testi- 
mony, to invalidate it. If this principle obtains 
I with respect to a negotiable instrument when the 
j one who gives it currency is under a simple 
1 moi-al obligation to not countenance an illegal 
j contract by giving the sanction of his name 
I to the instrument under which it is concealed, 
! 'how much more propriety is there in extending 
I it to a case like the present one, where the per- 
I son who gave the sanction of his name to the 
' election certificates of the members of a Legisla- 
i ture, was acting under an official oath, and under 
\ a solemn sense of high public duty ? Jf it were 
: important to establish the correctness of the prin- 
! ciple just referred to by authorities, it would not 
' be difficult to cite hundreds of them from our 
j reports of adjudicated cases. / This, however, is 
j no't necessary; ajid I v/ill mention but a .single 
1 case (Bankof United States vs. Dunn, 6 Peters, 
51) in which the principle is broadly laid down 
by the Supreme Court of the United States. 
I The reason for the adaption of such a princi- 
I pie in the investigation of private rights before 
I courts of justice, is obvtous. It is the result of 
I that innate fear of being imposed on by false- 
I hood, which all men feel when any one who is 
i known to have been Qn both sides of any qucs* 
I tion comes forward to speak upon it; and the 
i action of judicial tribunals in refusing to hear 
; persons so situated, as witnesses, is precisely anal- 
ogous to that of the Satyr in the falde, who thrust 
j forth the stranger he at first received into his d well- 
j ing, because he warmed liis hands with the same 
I breath that he cooled his soup with. 
1 f have no personal knov/ledge of Governor 
i Reeder's conduct in this business; and my opin- 
ion with respect to his competency as a witness 
upon any point connected with' it, is necessarily 
based upon the facts presented in the record. 
But this I am constrained to say— he is convicted 
by his own record. His own acts, as they stand 
upon it, show that he canijot be heard; that he 
ought not to be heard; and that he isentitled to no 
credit whatever if he is heard. If the facts which 
he now alleges in his memorial, with respect to 
the first election for members of tiie Territorial 
Legislature, holden under his authority, are true, 
he was guilty of the grossest violation of an offi- 
cial oath, and of the most shameless dereliction 
of a high public duty ever jj-et known to the 
American people, v/lieii he issued the certificates 
declaring those members duly elected, and Vv'lien 
he recognized them as comppsing a legally-con- 
• stitutod Legislature, after they had been convoked 
on his call; and if, on the other hand, the facts 
alleged in his memorial are not true, why, then, 
he is guilty of a deliberate falsehood, and utters 
it with as malignant a design to do public mis- 
' chief, as ever yet disgraced and blackened any 



violation of the truth. So that, no matter from 
what point of view you regard him, as now ex- 
hibited in the public recoi-ds of the country, he 
has no right to be heard upon the point in ques- 
tion; nor can any one who is engaged in the 
discharge of a public duty give any weight to 
his representations, without striking at the very 
foundati.on of those principles, the maintenance of 
which has been hitherto considered, in all civil- 
ized society, as essential to success in all public 
inquiries after truth. 

Now, sir, there is no case here* which can 
ppoperly engage the attention of the House, for 
there is no evidence before us which will Justify 
any inquiry into the circumstances connected 
with the election of Whitfield prior to the date 
of the ceg.ificate; but if it were otherwise, and a 
case did exist, there is no power on the part of 
the House to engage in such an inquiry at this 
time. Thi^5 House has, under the Constilutioa, 
the right " to judge of the elections, returns, and 
qualifications of its own members." That clause 
of the Constitution applies in terms to the " mem- 
bers" of the House, and does not necessarily 
embrace the Delegates of Territories. It cannot 
be extended to Delegates, unless this position be 
true; that is to say, tliat where the reason of the 
thing is the same, the jjro vision, whether it be of 
a constitution or of a law, shall have the same 
application. If that be s6, those who advocate 
the adoption of this resolution are placed in this 
dilemma: either the constitutional provision does 
not apply to the election of Delegates; and then, 
as no power can exist in either House of Con- 
gress, unless it is given by the Constitution, or 
by an act of Congress, there is no authority 
whatever in the House to engage in any.investi- 
gation with respect to the election of a Delegate 
from a Territory, beyond the mere examination 
of the credentials presented by him; or the act of 
1851, on the subject of contested elections, als© 
applies to the election of Delegates from the Ter- 
ritories. If the act of 185] applies, then this 
ma t r is not rightfully before us, and no inquiry 
as to Whitfield's right to sit here as a Delegate 
can be entertained, for that act was adopted for 
the purpose of limiting the period within vi'hieh 
inquiries of this nature should be gone i)ito, and 
for regulating the manner in which the proceedings 
had in real contests should be carried on. Now, 
by the pi-ovisions of this act, if they apply to 
elections of Delegates, and if the provisions of 
the Constitution apply tind give authority to the 
House, no contest can be carried on with regard 
to the right of a sitting Delegate, uilless it wi^re 
begun v/ithin the time fixed, and, was carried on 
in the manner provided for in that statute. That 
time has passed by, and the requirements of the 
act have not been in the slightest degree com- 
plied with. 

And this is the position in which gentlemen 
on the other side of the House are placed. Either 
the House has not the ]30wer under the Constitu- 
tion, or the act of 1851 applies. If the act applies, 
then it is clear there can be no contest on behalf 
of any individual with respect to the seat of Mr. 
Whitfield. Ifthe act does not apply, it is because 
the constitutional provision is limited to cases of 
elections of members of the House of Represent- 
atives. No matter which. horn of the dilemma is 
taken, the, right to grant" this authority to send 
for persons and papers asked for by the commit- 
tee, can Jiave no existence with respect to this 
particular election. 
Mr. WAKEMAN. I would like to. ask the 1 



gentleman from Louisiana a question. I would 
like to inquire of him whether, if he admits the 
constitutional right of each House to judge of the 
election, returns, and qualifications of its own 
members, he denies the right of the House of Rep- 
resentatives to judge of the election, returns, and 
qualifications of Delegates from the Tevritori(,'s ? 

Mr. TAYLOR. The House would have a right 
to decide upon them under the territorial act of 
Kansas. It would have a right to look at the 
credentials presented by those who come here, 
and to say whether they w.ere, or were not, such 
as were required by the territorial act. The 
House would have no authority to go beyond 
that, and for the very simple reason that the 
House would be restricted, in their inquiry within . 
precisely the same liinits which the Government 
of the nation would' be restricted to when the 
agent of a foreign Government comes here' and 
claims the right to be received as its rejn-i'sr iita- 
I tive. In cases of that kind there arc otily two 
questions to be determined: first, are the cre- 
j dentials presented by him in due form; and sec- 
I ond, were the credentials granted to the agent by 
i tlTe government of the country from which he 
j came ? The first question would be decided upon 
a simple inspection of the credentials submitted. 
I The second one would be determined by an in- 
quiry into a single fact, viz: if^ tlie government 
which granted the credentials in the actual exer- 
cise of power over the people of the country 
which the agent claims to represent > If this fact 
is ascertained, no inquiry is gone into as to the 
legitimacy of the government. Whether it is 
the government de jure, or a government dc facto, 
is entirely immaterial. The goverimient in the 
actual possession of power over the country is 
entitled to be represented, and can, by its acts, 
bind the country over which it exercises actual 
dominion. 

The Delegate of a Territory is in no sensp a 
member of the House of Representatives. He is 
the mere agent of a distinct portion of people v/ho 
are authorized by law to associate thcinsrlves to- 
gether in a particular manner. This question was 
presented to the Congress of the United Slates in 
the first contested-election case, (that of James 
WJiite: Contested Elections, p. 83,) which grew 
up in relation to the right of a Delegate from the 
Territory south of the Ohio river, to a seat on 
this floor. In that case, every member who 
spoke on the subject — and among those; who did 
speak upon it were Mr. Madison, Mr. Swift, Mr. 
Dexter, and Mr. Smith of South Carolina — 
regarded the_ Delegate as not a member. TJiey 
decided that he was simply an agent — a sort of 
envoy from one political community to another 
political community. And such was the clearness 
j of their opinion on that point, that, when the 
questioft arose. Should, he, or should he not, be 
sworn.' the House decided that no oath could be • 
administered to him. It was even said by some 
of the members that, if he were willing to take it, 
it would be improper to allow him to do so. 

As a mere question of international law — as a 
question which has been examined and decided 
upon by all the regularly-constituted authorities 
of this Governmentj in, regulating our intercourse 
with other nations, it has always been held by us 
that no people — no Government, has a right to 
go behind the credentials which emanate from the 
I Government de facto of a foreign State, or of a 
distinct community, for the purpose of inquiring 
whether that Government is also a Government ^ 
de jure. And the same principle seems to have 



6 



been distinctly recognized as applicable to the ! 
cases of Delegates from our own Territories, by I 
the action of this House in the contest as to the I 
right of Jonathan Jennings to be received as the i 
Delegate from the Territory of Indiana, which : 
took place in 1809. In that case the committee , 
charged with the investigation of the case, report- ! 
ed (Contested ElecAons, p. 243, &c.) that, "Af-1 
ter a deliberate examination of the laws relative 
to the Indiana Territory, "they " consider it to be ' 
theirduty to investigate the authority under which I 
the election of Delegate to represent that Terri- 
tory was held, previous to an examination of the , 
irregularities suggested; because, if the election! 
was held without authority of law, it was void, ' 
without regard to irregularities." The committee ■ 
did make the investigation proposed, and decided \ 
that the proclamation of the Governor, directing: 
the election of a Delegate, was made without any 
authority of law. They then submitted a reso- ! 
lution declaring "That the election held for aj 
Delegate to Congress for the Indiana Territory, ' 
on the 22d of May, 1809, being w-J'iout aulhority 
of law, is void; and that, consequently, the seat of 
Jonathan Jennings, as a Delegate for that Terri-I 
tory, is vacant." When this resolution was con- , 
sidered by the House, a motion was made to ! 
strike outthe words, " withoutauthority of law," ; 
which was negatived by a vote of 51 to 45. The ' 
whole subject was fully debated; and when the I 
question on the adoption of the resolution as re- ! 
ported was put, the House rejected it by a vote of j 
83 against 30. And this is the answer to the ques- [ 
tion put to me. | 

And now, Mr. Speaker, it is proper for me to I 
say something on another question. The advo- 1 
cates of this resolution assume that, if their reso-! 
lution be not adopted— if this right be not given to 
them to send for persons and papers, it is because 
the members on this side of the House are dis- 
posed to smother inquiry. They are mistaken. 
The members on this side of the House are dis- 
posed to permit no irregijar, no improper, no un- 
constitutional exei-cise of power with regard to a 
question \yhich is to be regulated on fixed and | 
settled principles. They are unwilling that an i 
act of power should be perpetrated by this House j^ 
which may lead to consequences that no man can ! 
look forward to v/ithout apprehension — an act | 
of power which, if taken as a precedent, may . 
ahve the effect hereafter of placing two coordinate ' 
branches of the Government in opposition to each-i 
other — which may make this House recognize a ! 
particular district of country as a State, and the 
House at the other end of the Capitol as a Terri- 
tory; or make this Flouse recognize it as a Terri- 
tory, and the House at the other end of the Capitol 
recognize it as a State. So far as relates to the 
questions involve^i— so far as relates to the validity 
or invalidity of the present government of Kan- ' 
sas— so far as relates to the validity or invalidity ! 
of thgjaws adopted there, thatis a question which | 
■passes beyond the jurisdiction of this House, as j 
a separate House, and beyond the jurisdiction of; 
the Senate as aseparate body. It is a question ! 
which appertains to the Congress of the United 
States. I 

The very eloquent gentleman from Maryland, I 
[Mr. Davis,] who addressed the House yester- [ 
day upon this subject, said much that I concur ' 
fully in. But he seemed to have f\\!len into what I 
I conceive to be a very grave error, in relation to | 
the question of right,'and in relation to the ques- 
tion of power. That gentleman looked to the ; 
legislation of the country as it now stands. He ■ 



looked upon the part which the Executive of the 
country is bound to play under the laws; but he 
did not seem to embrace the whole subject. He 
did not take that enlarged view which it is neces- 
sary should be taken when we come to examine 
questions of this nature, and to determine upon 
our action. He asserted that the Executive of 
the United States was vested with the sole- power 
of determining whether the government which 
now exists in Kansas'Avas the rightful govern- 
ment. 

Now, while I agree with him,:that at this time 
the Executive is vested with that authority, I for 
one did not concur with him in the opinion that 
that power is supreme, and that the exercise of 
it is final and conclusive. The executive power 
of the Government, so far as it has any*connec- 
tion with this subject, is limited to taking care 
that the laws of the United States " be faithfully 
executed. " It is the duty of the President of the 
United States to. enforce all the acts of Congress; 
and the right to which the gentleman from Mary- 
land referred as now vested in the President is 
specially conferred upon liim by the legislative 
action of Congress. 

The Constitution of the United States declares 
that, in the event of an insurrection in any of the 
States against State authority, Congress shall 
have power to suppress that insurr(;ction; but 
the Constitution is silent as to the means that 
are to be made, use of. The power itself was 
devolved upon Congress; but before it could be 
properly exercised it was requisite that provision 
should be made for it by law. Well, sir, very 
soon after the organization of the Government, 
troubles grew up in different States. There was 
an insurrection in Pennsylvania growing out of. 
the operation of the excise laws. There was an 
insurrection in Massachu.setts growing out of 
some other local cause. When Uie first of these 
insurrections occurred, the Government of the 
United Slates had not yet provided for that con- 
tingency. In 1792, however, when the first 
emergency arose, the national Legislature passed 
an act giving to the President authority to wield 
the military force of the country for the accom- 
plishment of the object contemplated in the Con- 
stitution. In 1795, a subsequent difnculty having 
occurred, the public attention was againdirected 
to the subject, and that legislation was somewhat 
modified; but the legislation of 1795 continues 
to be the existing legislation upon the subject. 
It is by virtue of that'legislation that the Execu- 
tive now possesses the power to which the gen- 
tleman from Maryland alluded. This power, 
however, is not an independent power, to be 
exercised by him without supervision or inquiry 
from any other department of the Government. 
The manner in which he exercises it is always 
open to inquiry. 

It is competent for the Congress of the United 
States, at any time, in their legislative capacity, 
to repeal that law. It is competent for the Con- 
gress of the United States, in its legislative capa- 
city, to i-evise the manner in which that power has 
been exercised, or to provide new means and new 
rules for its exorcise in the future. But, sir, 
the time to which I am limited by the rules of the 
House will not permit any elaboration of these 
views, or, indeed, allow me to present many 
others which occur to my mind, to the consider- 
ation of the House. 

I will refer, however, for a moment, to a case 
which once engaged the public attention very 
much in the United States; and which, if looked 



at rightly, will furnish lessons that may be useful 
to us in this emergency. I refer to the case which 
was alluded to yesterday in debate— the R-hode 
Island case. If that case be carefully examined, I 
think that the facts which it presents for our con- 
sideration will admonish us that the steps pro- 
posed to be taken by the advocates of this reco- 
lution are wrong — that the steps proposed to be 
taken by these gentlemen are dangerous ones — 
that the contemplated deci.sion by this House of 
questions of the greatest national importance, find 
which arc entitled to, and should receive the 
gravest consideration, not only of all the coor- 
dinate branches of the Government, but of the 
whole American people, ought, in justice to the 
country and to the cause of good government, to 
be postponed to another, and a more fit occasion. 

In Rhode Island there was a charter govern- 
ment existing which limited the exercise of the 
political power of the State to a small portion of 
Its population. In the progress of events, the 
portion of the people who were excluded from all 
exercise of political power, and who saw them- 
selves surrounded by other States with more 
liberal institutions— institutions under which the 
right of suffrage and eligibility to office, were 
conceded to a much larger portion of the popula- 
tion — became discontented.- They asserted that 
there were provisions in the charter which im- 
posed improper restraints upon theirrights. They 
began agitatuig; but, when they began to agitate, 
they found a government in existence — a govern- 
ment which, up to that time, had been always 
regarded as a government de facto and de jure. 
Weir, sir, after agitating for a length of time, they 
did what the advocates of this resolution uphold 
the people in Kansas fordoing. They proceeded, 
by their own authority, to elect delegates, who 
met for the purpose of framing a constitution and 
government for the State of Rhode Island, to dis- 
j^lace and put aside the tlien existing government. 
These delegates met together and framed a con- 
stitution. That constitution was submitted to 
the people, and, at the election holden to decide 
upo)i it, not only a very large majority of the 
people of the whole State voted for the new con- 
stitution, but a majority of those to whom the 
exercise of the power of the State was given by 
the charter government itself, gave it the sanction 
of their votes. The body of the people of Rhode 
Island then proceeded, under the authority of the 
new constitution, to elect State officers. They 
elected an Executive and a Legislature, and this 
Executive and the Legislature, as in the case of the 
constitution, received not only the vote of a major- 
ity of the people, but a majority of the legal voters 
under the charter. But the authorities under the 
charter would not yield up the power which it had 
placed in their hands, and claimed to be the govern- 
ment (Ze^/itc/o. The contestripened into hostilities, 
and the danger of a war between the parties be- 
came imminent. Military forces were arrayed on 
one side and on the other; and in that critical, 
menacing conjuncture, that occurred in Rhode 
Island which has occurred in Kansas. The Ex- 
ecutive de .facto called on the Executive of this 
nation to wield its power to put down insurrec- 
tions, to prevent collisions and the shedding of 
blood by brethren in deadly conflict. The Pres- 
ident of the United States declared his purpose to 
sustain the government de facto, as the one known 
to the constitution and laws; and what was the 
result.' There .was no hostile conflict. The Le- 
gislature elected under the constitution thus set 
up sc>arated— the Execu:ive fled. The goverii- 



1 1 ment de facto was permitted to exercise all its 
' powers; and what then happened? Were those 
who thus yielded, trampled to the earth— des- 
1 polled of their rights — because they submitted to 
the existing government, oppressive though it 
I seemed to be, rather than engage in a conflict not 
j sanctioned bylaw .' No, sir; the evils complained 
of by them were remedied by their presenting 
, themselves at the polls at the subsequent election, 
j and speaking through the ballot-boxes. The 
I wrongs which they had endured were redressed 
j by their own strength and power. Not exerted 
on a field of battle — not displayed amid scenes of 
I turbulence and strife, and filling a whole country 
j with fear " that anarchy was come again," but 
1 by the decided yet peaceful expression of their 
I opinions at the times and places, and in the modes 
; prescribed by law. And now the Executive of the 
United States has been called on in the present 
case to exercise the same power as in the Rhode 
Island case, and under what may possibly be, 
similar circumstances; and he has declared his in- 
tention to exercise that power. That power will 
be exercised if it be necessary, as it would have 
I been exercised in Rhode Island; first to put down 
1 that illegal assemblage which now claims to ex- 
I ercise the powers of government in the Kansas 
j Territory, under the authority of a constitution 
j which has been set up by them and their confed- 
erates in opposition to the existing government 
which was established there by the concurrent 
i action of the National Congress and the Execu- 
tive; and secondly, it will be exerted for the pur- 
1 pose of preventing the intrusion of all those into 
1 the Territory, with the intent and design to inter- 
j fere with the exercise of the rights given to 'the in- 
j habitants of that Territory by the territorial act; 
j whether they are pro-slavery men, or anti-slavery 
men — whether they came from the North or from 
the South. And it will be exerted, too, to pre- 
vent or repress the disorders and violence, no 
I matter how excited or provoked, which would be 
calculated to hinder or disturb the exercise of the 
' right of the real inhabitants of the Territory to 
the most perfect freedom of suffrage. 

The contestant in this case claims to be a Del- 
egate representing the people of the Territory of 
Kansas. Let us not forget that that contestant 
was-Govcrnor — the chief executive authority in 
the Territory of Kansas when these disturbafices, 
which have been so loudly spoken of, are alleged 
to have taken place. If they had had any exist- 
ence, it was his duty — and he was false to his ob- 
ligation to the country, he was false to' his oath 
of office, if he failed to discharge it — to inform 
the Executive of the United States of their occur- 
rence, and to call on him to interpose his power 
to prevent their recurrence or to repress theiji. 
Had he done so — admitting for one moment that 
any facts countenancing the contestant's present 
allegations were in existence at the time he now 
speaks of— the troubles and disturbances which it 
is said have since broken out there would never 
have occurred, and frightened men from their 
propriety. But he failed to discharge his duty, if 
the facts did exist; and now he urges on his friends 
here, after lie has violated -his duty to his country 
in one department of the Government, to violate 
their duty to the nation, their duty to the Consti- 
tution, their duty to the rights of man in another 
department of' the Government; and insists that 
they should take a step in opposition to every 
principle of public law — to every dictate of soun'd 
policy — and to every motive of personal propri- 
ety — which may result in a contest in which fra- 



LIBRARY OF 



CONGRESS 



8 



ternal blood may be shed, unless the spirit of 
lawlessness and violence which is now stalking; 
through the land is laid by counsels of mingled 
firmness and moderation. 

Now, sir, we have a high duty to perform; and 
the question arises: How shall we perform it in 
acting upon the question before us? My own 
opinion is, that we shallbestdi^charge it by throw- 
ing aside this contest, which has no existence in 
fact; for which there is no legal ground; with 
respect to which there is no evidence on which 
men having resjiect for themselves can act; and 
by allowing time to pass by for the exercise of 
the power which the national Legislature has 
conferred on the Executive. Let us wait until 
another election arrives. If it be true, as these 
gentlemen assert, that there is a large majority 
of persons entertaining the sentiments which they 
seem to entertain now settled in Kansas Terri- 
tory, what would be the result of such a course? 
If the executive power be exercised, the intrusion 
of armed men — of those persons spoken of as 
border ruffians— will be prevented, and any vio- 
lence, no matter from what quarter it comes, will 
be repressed, and the inhabit;uits — the bona fide 
settlers— will have an opportunity of giving ex- 
pression to their sentiments freely through the 
ballot-Box. Then the changes which they desire 
to'make in the legislation of the country will be, 
made peacefully, rightfully, through the exercise 
of the only power which is legitimate— the only 
power which any American citizen can desire to 
have exerted in such a contest — the power of the 
individual citizen, acting with his peers and 
spealcing with sovereign authority through the 
ballot-box. 

But, sir, it maybe said that a different result 
may take place. ,It is possible, but I think that 
we ought not to allow possibilities that are ex- 
tremely improbable control, or even influence, our 
action. It is our duj,y to wait until that experi- 
ment is tried. If the Executive does not honestly 
exercise his power, if these invasions are not 
prevented, if these instances of pretended vio- 
lence are not repressed, then will be the time for 
this House, in the exercise of its constitutional 
duty, to act. This House is the great inquest of 
the nation. It may institute an inquiry into the 
conduct of the Chief Magistrate. It may prefer 
against him articles of impeachment for violation 
of his official duty. I go further: If the Exec- 
utive should fail to do his whole duty, it would 
then not only be proper for this House to proceed 
against him by prc;ferring articles of im])each- 
ment, but it would be the bounden duty of Con- 
gress—of the national Legislature— to notice it, 
and take action on the subject. It would then 
be competent for thera to engage in inquiries for 
the purpose of ascertaining the facts, not for the 
purpose of deciding a contested election in this 
House, not for the purpose of deciding a con- 
tested election in any other House, but for the 
purpose of informing the legislative mind, so 
that it could determine whether it should or not 




016 089 038 1 ^ 



exercise the legislativ 

for the purpose of c 

the purpose of more ef 

of Kansas in the exercise of their jusl ngi 

to change or modify what now exists. 

This, sir, according to my view, is the true 
course; and it is not only tiie course pointed out 
by reason, but it is the course which every true 
lover of his country oughtto insist upon, because 
you cannot tell in the unknown future what may 
follow improper action. Why, sir, this is a 
Government which is based solely u[ion the con- 
sent of the citizens; this is a Government in 
which all power is to be exercised rationally; 
this is a Government, whether it be regarded as 
extending over all our possessions in virtue of the 
Constitution pf the United States, or whether it 
be regarded as existing in the particular States 
under the State constitutions, or in the organized 
Territories under the authority of the national 
Legislature, — it is, I say, a Government which 
exists under- and by authority of law, and in 
which there are means provided for the exercise" 
of all power in a peaceful and legitimate way. If 
the course which I have indicated be pursued, no 
matter what difficulties may exist in Kansas, 
they will terminate peacefully. Right will in the 
end triumph. 

If, on the contrary, by the irregular action of the 
House, an extraordinary step should be taken — 
if, by the irregular action of this' House, the ex- 
citement which hasheretofore existed, and which 
it is said now exists, shall be heightened until 
it terminates in conflict, who can tell wh^t will 
be the result? Who can tell how far the confla- 
gration will spread before the unholy fires of 
fanatical, lawless, revolutionary agitation are 
quenched in blood ? 'This country has been for 
three quarters of a century a spectacle which has 
filled the whole world with admiration; one in 
which all the powers of a great nation have been 
exercised peacefully, and in which all those diffi- 
culties which^lmost necessarily arise from time 
to time in the best-regulated Governments, and 
seem to threaten them with public commotions 
or civil war, have been encountered and over- 
come by the exercise of the popular reason, to the 
exclusion of popular force. If the will of the pro- 
moters of this contest is to prevail in this House, 
it will present that spectacle no longer. No, sir; 
if the counsels of these men find favor with us, a 
few short weeks or months maybe sufficient to fill 
aland where it has been all sunshine with "clouds 
and darkness;" and amid the surrounding gloom 
such contentions and conflicts may arise in which 
section may be arrayed against section, State 
against State, and perhaps man against naan, in 
deadly strife, as would make all men who feel an 
interest in the success of a republican form of 
government, and who believe in the capacity of 
men for self-government, to shudder with fear^ 
and fill them with forebodings of the speedy 
downfall of all free institutions dependent on the 
popular will. « 



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LIBRARY OF CONGRESS 




